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Comey’s testimony sharpens attention on questions of obstruction

WASHINGTON — If one believes Mr James Comey’s account of his encounters with United States President Donald Trump, it could present a prosecutable case of obstruction of justice, several former prosecutors said Friday (June 9).

Former FBI Director James Comey is sworn in during a Senate Intelligence Committee hearing on Capitol Hill, in Washington, June 8, 2017. Photo: New York Times

Former FBI Director James Comey is sworn in during a Senate Intelligence Committee hearing on Capitol Hill, in Washington, June 8, 2017. Photo: New York Times

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WASHINGTON — If one believes Mr James Comey’s account of his encounters with United States President Donald Trump, it could present a prosecutable case of obstruction of justice, several former prosecutors said Friday (June 9).

But they also cautioned that little is normal about this situation. The Justice Department has long argued that the Constitution does not permit prosecuting a sitting president.

And even if Mr Trump left office first — through impeachment, or simply by losing re-election in 2020 — there is no guiding precedent in which any former president has been indicted on a charge of ordering a criminal investigation closed for improper reasons.

“Usually as a lawyer you look at the precedent and it makes it easy, but it hasn’t come up before,” said Mr Samuel Buell, a former federal prosecutor who led the Enron task force and now teaches white-collar criminal law at Duke University. “We are way outside the realm of normal executive branch behaviour.”

Federal law criminalises actions that impede official investigations and can include actions that would otherwise be lawful if prosecutors can prove the defendant had corrupt intentions. Mr Trump’s critics have been raising the spectre of obstruction of justice since he fired the Federal Bureau of Investigation (FBI) director Comey last month, then admitted on television that when he made that decision, he had been thinking about the FBI’s investigation into Russia’s interference in the 2016 election and possible coordination by Trump campaign associates.

But Mr Comey’s testimony Thursday before the Senate Intelligence Committee sharpened obstruction-of-justice questions while refocusing them on an earlier conversation Mr Comey said he had with Mr Trump on Feb 14 about an FBI criminal investigation of Mr Michael Flynn, Mr Trump’s former national security adviser.

Specifically, according to Mr Comey’s testimony, after he met that day with Mr Trump and others in the Oval Office, Mr Trump ordered all the other officials out of the room — twice reiterating to lingerers, Attorney General Jeff Sessions and Mr Trump’s son-in-law and adviser, Jared Kushner, that they were to leave. Then, Mr Comey said, Mr Trump brought up Mr Flynn, calling him a “good guy” and saying, “I hope you can let this go.”

“I took it as a direction,” Mr Comey testified Thursday. “I mean, the president of the United States, with me alone, saying, ‘I hope this’ — I took it as, This is what he wants me to do.”

Republican Senator Jim Risch, responded to Mr Comey, “You may have taken it as a direction, but that’s not what he said.” Mr Risch also suggested that no one had ever been prosecuted for obstruction of justice based on saying, “I hope.”

In fact, there have been several cases showing it is possible to obstruct justice using those words. In a 2008 case involving a man who had pleaded guilty to bank robbery, the 8th US Circuit Court of Appeals, in St Louis, upheld a judge’s decision to impose a longer sentence because the man had also obstructed justice by telling his girlfriend, a potential witness, “I hope and pray to God you didn’t say anything about a weapon.”

“We have examples all the time in criminal law of people saying things only slightly subtly, where everyone understands what is meant — ‘Nice pair of legs you got there; shame if something happened to them’,” Mr Buell said.

In a statement shortly after the hearing, Mr Trump’s personal lawyer, Mr Marc Kasowitz, acknowledged that Mr Trump had asked Mr Comey about Mr Flynn and had said that the former national security adviser was a “good guy”. But he denied that Mr Trump had said or implied anything to Mr Comey about stopping the investigation.

“The president never, in form or substance, directed or suggested that Mr Comey stop investigating anyone, including suggesting that Mr Comey ‘let Flynn go’,” Mr Kasowitz said.

Still, Mr Renato Mariotti, a former federal prosecutor who is now a white-collar defence attorney and a partner at Thompson Coburn, said that the level of detail Mr Comey offered — in particular, the accumulation of nuggets about how Mr Trump cleared the room, showing how important it was to the president to have no one else present, was “stronger than what we heard before” as evidence of nefarious intent.

But defence attorneys could still argue for a benign interpretation, Mr Mariotti said, and he suggested that while the publicly available evidence was sufficient for a US attorney’s office to consider bringing an obstruction case if it involved a business executive or a low-level political figure, the higher stakes of going after a president would give prosecutors pause. They would recognise, he said, “that it’s a hard case and you might lose.”

“Based only on what we know now in public, a reasonable prosecutor might bring this case against an ordinary person,” he said. “But a prudent prosecutor would want more facts before bringing this case against a president.”

The Justice Department has not said whether the special counsel, Mr Robert Mueller III, is looking into any obstruction by Mr Trump in addition to his mandate to examine Russia’s interference in the 2016 election and possible coordination by Trump campaign associates. But Mr Comey said Thursday that he had given his memos recounting conversations with Mr Trump to Mr Mueller, which would appear only to be relevant to an obstruction inquiry. NEW YORK TIMES

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